No. 05-02-01172-CR
Opinion issued August 13, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-86597-00. AFFIRMED
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice MORRIS.
In this case, Christopher Michael Baylor appeals his conviction for theft. He complains in two points of error that the evidence against him is legally and factually insufficient to support his conviction. We disagree and affirm the trial court's judgment.
Factual Background
The manager of a 7-Eleven store became suspicious about possible wrongdoing in the store when he noticed that the store's surveillance camera had been moved from its regular position. He discovered that approximately $600 had disappeared from the store during the night shift. After viewing the surveillance tape from the early morning hours, the manager contacted police, who determined that the night clerk, appellant, and one other man were suspects for the theft. Appellant and a second man are featured prominently on the surveillance tape, which was admitted into evidence. On the tape, appellant assists customers, cleans, and restocks the store, despite the fact that he was never an employee there. At one point, a ladder is visible in the camera's view. Afterward, the camera is obviously pointed at the ceiling, rather than the store's counter. The store's safes, which had previously been visible, are no longer in view until the camera appears to fall back into place more than an hour later. At approximately 3:24 a.m. on the tape, appellant crawls on the ground to the store's safe — as if he believes the camera is still pointed too high to record his actions — and takes something from one of the safes. A customer who was present at the store during the early morning hours testified that she suspected something was amiss when her usual clerk was missing and she saw appellant walk in from the store's office. Appellant was not in a uniform. He stood behind the counter and summoned the clerk. The customer asked the clerk if he was alright; she was concerned the clerk was being robbed. The clerk told her appellant and another man she had seen outside were his friends. The manager of the 7-Eleven testified that the store's safe is on a time-delay system. An employee can never withdraw more than $100 at one time, and must wait two minutes between withdrawals. The night clerk told the manager that appellant had been in the store with him. A clerk for the Allen Police Department also identified appellant on the surveillance tape. Discussion
In two points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. In a legal sufficiency review, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In his legal sufficiency complaint, appellant contends the State failed to prove the $600 taken from the store was actually taken by him, rather than other people who also had access to the money in the safes or the cash register. He contends the videotape shows him accessing a safe only one time, making the maximum amount he could have taken $100. He complains the State failed to prove he left the premises with any of the missing money. He complains that no accounting records were admitted into evidence. In addition, he contends the "owner" of the stolen money at the time of the theft was the night clerk — despite the fact that the night clerk was a suspect in the theft — rather than the store manager. In his factual sufficiency complaint, appellant incorporates by reference his arguments from the legal sufficiency complaint and also argues that the State failed to prove he left the store with the missing money because the State never showed, for example, a change in his spending habits. He also argues the State failed to show he had access to more than $100 because the night clerk was in the store before appellant arrived and had made accounting errors in the past. The facts of appellant's case necessitate that we consider the law of parties in addressing his sufficiency complaints. Under the law of parties, a person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). Here, appellant was videotaped for a substantial period of time working in concert with the night clerk and one other man. While he was in the store, someone used a ladder to move the store's surveillance camera. For more than an hour, the store's safes could not be seen on the surveillance videotape. Afterward, appellant was videotaped crawling on the floor to a safe and taking something from it. And he was nowhere in sight when the manager got to the store in the morning. The manager of the 7-Eleven certainly had greater right to possession of the $600 than appellant. See Tex. Pen. Code Ann. § 1.07(a)(35)(A) (Vernon 2003) (defining "owner"). After viewing the record under the appropriate standards, we conclude that even if appellant did not take all of the missing money himself, the evidence is legally and factually sufficient to prove he was guilty of the theft, at least as a party. We overrule appellant's two points of error. We affirm the trial court's judgment.